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Author Topic:   Sharia Law - Does it have a place in Democratic Countries?
Tangle
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Posts: 9489
From: UK
Joined: 10-07-2011
Member Rating: 4.9


Message 1 of 34 (774754)
12-22-2015 3:27 AM


The fact that an alternative form of law has been practiced in my country - and I assume all other countries where Muslims live - has troubled me for some time. I know very little about it but the Times had a good article on it this week. This is a subject that would have been taboo to talk about a couple of years ago, it's taken the recent terrorist and child abuse problems to overcome the fear of being called racist for having these concerns.
Democracy must always insist on equality before the law. At the heart of this principle is the belief that all citizens, regardless of their faith, creed or gender, are equally worthy of legal protection and redress. If the rule of law is to treat everyone as equal, there can be only one rule of law, administered by the state according to known precepts. The forthcoming inquiry into the judicial role of Sharia councils in Britain is, therefore, significant and welcome. Where such councils act as courts in a parallel legal system, they encroach on the rights of those whose interests are given short shrift by Islamic jurisprudence often women and children. The inquiry must find such cases, and government must put a stop to them.
Most cases brought before Sharia councils are family matters. As far as civil law is concerned, the councils’ decisions have little binding power. Sharia councils have no official jurisdiction over divorce settlements involving property, cases involving custody of children, or any criminal matters.
However, the councils can grant couples a divorce where their marriage contract itself was religious, not civil. Islamic law, as it is enumerated in the Koran and the collected statements of the Prophet, makes it difficult, though not impossible, for women to seek a divorce. Even where a marital dispute is about cohabitation alone, therefore, women’s rights are not properly respected.
Property and child custody issues will be touched by most divorces too. It would be deeply worrying if the inquiry were to find Sharia councils overreaching by coming to conclusions on these matters. Whereas British law emphasises the best interests of the child in determining custody, for instance, Sharia rules grant custody to the father if the child has reached the age of transfer, regardless of the facts of the case. A 2008 ruling of the House of Lords appellate committee, the predecessor of the Supreme Court, rightly branded this system arbitrary and discriminatory.
Anyone who has suffered discrimination before a Sharia council is legally entitled to a hearing before a civil court with genuine jurisdiction on these matters, but it can be difficult to claim that entitlement. Few people know the details of their rights of redress under 20-year-old legislation, least of all those who have been told that the decision of the panel before them is final. Even with all the information, the threat of ostracism by the community can deter victims of discrimination from coming forward.
The inquiry should also address those activities of Sharia councils currently recognised by the law. Any two parties who want to resolve a dispute outside the courts can choose to appoint an arbitrator to decide the matter and, if they invoke the Arbitration Act 1996, that decision can then be upheld in civil courts. The Muslim Arbitration Tribunal thus claims to offer Muslims the opportunity to settle disputes in accordance with Islamic Sacred Law with the knowledge that the outcome will be binding and enforceable.
British courts must enforce their own decisions alone. Under present law, they may have to uphold a Sharia tribunal’s decision to award an estate to sons and not daughters, simply because all parties signed themselves into a system of inheritance that privileges men over women in accordance with religious law. The civil law should not be so pliable as to yield to the competing jurisprudence of whatever faith wishes to reshape it.
Any agreement reached through coercion or other forms of pressure can always be overturned in a civil court. Coercion often goes hand in hand, however, with enforced silence. Attempts to muzzle victims of discrimination are almost impossible to prove. The inquiry must investigate this, but it can never know what it has not found. The only true protection is a single, sovereign rule of law.

Je suis Charlie. Je suis Ahmed. Je suis Juif. Je suis Parisien.
Life, don't talk to me about life - Marvin the Paranoid Android
"Science adjusts it's views based on what's observed.
Faith is the denial of observation so that Belief can be preserved."
- Tim Minchin, in his beat poem, Storm.

Replies to this message:
 Message 3 by NoNukes, posted 12-22-2015 10:10 AM Tangle has replied
 Message 12 by Modulous, posted 12-22-2015 4:08 PM Tangle has replied

  
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Message 2 of 34 (774759)
12-22-2015 7:51 AM


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NoNukes
Inactive Member


(1)
Message 3 of 34 (774763)
12-22-2015 10:10 AM
Reply to: Message 1 by Tangle
12-22-2015 3:27 AM


If the rule of law is to treat everyone as equal, there can be only one rule of law, administered by the state according to known precepts.
I think this stated principle is simply wrong. If the rule of law is to treat everyone that same, then the law must be the same. But treating everyone the same does not necessarily results in fairness or equality because we are not all the same. I am not bothered by an arbitrary and capricious law that forbids me to wear head gear because I don't wear hats unless they are part of a sports uniform. That does not make it unreasonable that someone else is affected.
The argument is similar to those made in defense of laws that do not allow racial intermarriage. Such laws were said to be non-discriminatory because they affected whites and blacks similarly. Yeah, similarly and odiously.
I see a mix of things that are problematic and things that the author of the source simply does not like. Western countries allow arbitration of disputes and frequently, the fact that those arbitrations disadvantage one party or another is given short shrift. As an example I can cite the recent Supreme Court decision in AT&T Mobility LLC v. Concepcion which continues the trend of enforcing question arbitration clause in situations which leave the public with little or no recourse when corporations cheat them.
Of course there should be standards for what constitutes fairness. Does the author here make his point that the checks and balances on Sharia councils are inadequate? Only in a handwavy way.
This is a subject that would have been taboo to talk about a couple of years ago, it's taken the recent terrorist and child abuse problems to overcome the fear of being called racist for having these concerns.
And in some cases, the terrorism has just provided racists some new shade to hide in. There is nothing particularly new about scared people acting less inclusive and accommodating of people who are different.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 1 by Tangle, posted 12-22-2015 3:27 AM Tangle has replied

Replies to this message:
 Message 4 by Tangle, posted 12-22-2015 11:15 AM NoNukes has replied

  
Tangle
Member
Posts: 9489
From: UK
Joined: 10-07-2011
Member Rating: 4.9


Message 4 of 34 (774768)
12-22-2015 11:15 AM
Reply to: Message 3 by NoNukes
12-22-2015 10:10 AM


NN writes:
I think this stated principle is simply wrong. If the rule of law is to treat everyone that same, then the law must be the same. But treating everyone the same does not necessarily results in fairness or equality because we are not all the same.
That's a fairly core idea behind the law - i just looked up the judicial oath, used to 'swear in' judges
I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.
It seems to have a slightly wider meaning than just treating people equally. And in practice the law doesn't treat people the same for the same offence. Obvious examples are that youths are treated materially differently to adults, mentally ill people have a defence, women with young children are sent to prison less than men for the same offence, circumstances provided mitigation and so on.
I am not bothered by an arbitrary and capricious law that forbids me to wear head gear because I don't wear hats unless they are part of a sports uniform. That does not make it unreasonable that someone else is affected.
I don't get this. You seem to be saying if a law doesn't affect you, you don't care about it?
Of course there should be standards for what constitutes fairness. Does the author here make his point that the checks and balances on Sharia councils are inadequate? Only in a handwavy way.
It's all rather complex, in many ways it's a good thing that people can reach agreements outside of the machinery and expense of the formal law. On the other hand, there are concerns that our society's values of equality and anti-discrimination are being over-ruled by some Sharia courts - particularly in relation to women and children, where the laws are soften in direct opposition to UK law.
And in some cases, the terrorism has just provided racists some new shade to hide in. There is nothing particularly new about scared people acting less inclusive and accommodating of people who are different.
I doubt that racists ever felt much of a need to restrain themselves, whereas it's been shown over and over here in the UK the effects that a fear of raising concerns over real abuse was a cause of it continuing unabated. In the last month the government here has initiated reviews into Muslim schools, Sharia law and the Muslim Brotherhood. In the last few months we've had the investigations into Pakistani child abuse in Rotherham and sex trafficking in Rochdale. These were large scale abuses that have persisted for many years but it has only been relatively recently that officialdom has had the stomach for examining it.

Je suis Charlie. Je suis Ahmed. Je suis Juif. Je suis Parisien.
Life, don't talk to me about life - Marvin the Paranoid Android
"Science adjusts it's views based on what's observed.
Faith is the denial of observation so that Belief can be preserved."
- Tim Minchin, in his beat poem, Storm.

This message is a reply to:
 Message 3 by NoNukes, posted 12-22-2015 10:10 AM NoNukes has replied

Replies to this message:
 Message 5 by NoNukes, posted 12-22-2015 11:29 AM Tangle has replied

  
NoNukes
Inactive Member


Message 5 of 34 (774771)
12-22-2015 11:29 AM
Reply to: Message 4 by Tangle
12-22-2015 11:15 AM


I don't get this. You seem to be saying if a law doesn't affect you, you don't care about it?
Actually I am saying exactly the opposite. A law that does not affect me might reasonably be considered unfair and unequal treatment by someone else. If my statement was not clear, surely the two examples ought to be illustration enough.
That's a fairly core idea behind the law - i just looked up the judicial oath, used to 'swear in' judges
Judges don't make law. They are stuck applying whatever we hand to them. When we make laws, the responsibility to be fair places a fairly stringent limit on what laws we ought to have.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 4 by Tangle, posted 12-22-2015 11:15 AM Tangle has replied

Replies to this message:
 Message 6 by Tangle, posted 12-22-2015 12:04 PM NoNukes has not replied

  
Tangle
Member
Posts: 9489
From: UK
Joined: 10-07-2011
Member Rating: 4.9


Message 6 of 34 (774776)
12-22-2015 12:04 PM
Reply to: Message 5 by NoNukes
12-22-2015 11:29 AM


NN writes:
Actually I am saying exactly the opposite. A law that does not affect me might reasonably be considered unfair and unequal treatment by someone else. If my statement was not clear, surely the two examples ought to be illustration enough.
Ok. But that's also true of laws that do affect you - hence my confusion. In any case, I'm sure the perpetrators of many crimes feel unfairly treated - that's not really the point. Surely what matters is whether those laws are are intrisically fair? I don't want to get into definitions of fairness but in the case of Sharia law, our societies have a general level of agreement that discriminating against women is not fair, whilst for many Muslim clerics, female subjugation to their husband forms part of their law. No doubt they feel it unfair of UK law to insist otherwise, but in the UK they live in a democracy not a theocracy.
Judges don't make law.
Technically they often do through interpretation and case law, but I take the point for Statute law. But judges do apply the law and they have discretion on how it will be applied on a case by case basis according to the individual circumstances of the crime, the criminal and the victim. Judges do not imprison a starving person caught stealing a loaf of bread, even though the law might allow it in other circumstances.
They are stuck applying whatever we hand to them. When we make laws, the responsibility to be fair places a fairly stringent limit on what laws we ought to have.
Yes, but in the context of Sharia law what point are you making here? Our democracies make laws that apply to all. Generally, they're fair - unfair ones tend to get repealed by the next administration or public rebellion.

Je suis Charlie. Je suis Ahmed. Je suis Juif. Je suis Parisien.
Life, don't talk to me about life - Marvin the Paranoid Android
"Science adjusts it's views based on what's observed.
Faith is the denial of observation so that Belief can be preserved."
- Tim Minchin, in his beat poem, Storm.

This message is a reply to:
 Message 5 by NoNukes, posted 12-22-2015 11:29 AM NoNukes has not replied

Replies to this message:
 Message 7 by PaulK, posted 12-22-2015 12:33 PM Tangle has replied

  
PaulK
Member
Posts: 17822
Joined: 01-10-2003
Member Rating: 2.2


Message 7 of 34 (774778)
12-22-2015 12:33 PM
Reply to: Message 6 by Tangle
12-22-2015 12:04 PM


So here's a question. In a civil case, should the parties be compelled to take the matter to court or can they settle on terms they find agreeable ? And if you think that they should be forced into court, what circumstances would require such intervention from the legal system?

This message is a reply to:
 Message 6 by Tangle, posted 12-22-2015 12:04 PM Tangle has replied

Replies to this message:
 Message 8 by Tangle, posted 12-22-2015 12:53 PM PaulK has replied

  
Tangle
Member
Posts: 9489
From: UK
Joined: 10-07-2011
Member Rating: 4.9


Message 8 of 34 (774781)
12-22-2015 12:53 PM
Reply to: Message 7 by PaulK
12-22-2015 12:33 PM


PaulK writes:
So here's a question. In a civil case, should the parties be compelled to take the matter to court or can they settle on terms they find agreeable ?
The law allows for private agreements - even encourages it through arbitration which can be binding in UK law. Some Sharia courts operate under that law. There is doubt though that with Sharia law that both parties are equal within the agreement or have been told what the law says so they must abide by it, like or not.
And if you think that they should be forced into court, what circumstances would require such intervention from the legal system?
I don't think that people should be forced into court. But I do think that where Sharia law acts against the values of society - such if it discriminates between male and female unfairly - it should be prohibited from doing so.
Like all private courts, people only wind up there if they can't come to an agreement between themselves. The fact that one party is appealing to a Sharia court means that they can't agree.
It gets a bit trickier if both parties agree that they wish to be bound by Sharia and are just asking for a judgement on what that is.....

Je suis Charlie. Je suis Ahmed. Je suis Juif. Je suis Parisien.
Life, don't talk to me about life - Marvin the Paranoid Android
"Science adjusts it's views based on what's observed.
Faith is the denial of observation so that Belief can be preserved."
- Tim Minchin, in his beat poem, Storm.

This message is a reply to:
 Message 7 by PaulK, posted 12-22-2015 12:33 PM PaulK has replied

Replies to this message:
 Message 9 by PaulK, posted 12-22-2015 1:15 PM Tangle has replied

  
PaulK
Member
Posts: 17822
Joined: 01-10-2003
Member Rating: 2.2


Message 9 of 34 (774783)
12-22-2015 1:15 PM
Reply to: Message 8 by Tangle
12-22-2015 12:53 PM


But Sharia law is implemented only as arbitration with either no legal force or only the legal force of a binding arbitration. On a purely legal level there appears to be no problem.
You say that going to an arbitrator is a sign of disagreement. Unfortunately there is an agreement - to let the arbitrator settle it. Again, on a purely legal level nobody is compelled to accept arbitration (except under the terms of a contract) and if the arbitration is not binding they are not even legally compelled to accept the result.
By going to a Sharia court - just like any other arbitrator - the two parties are implicitly agreeing to let the matter be decided by the arbitrators principles - in this case Sharia law.
If either party does not agree then, on a purely legal basis, they are perfectly free to refuse.

This message is a reply to:
 Message 8 by Tangle, posted 12-22-2015 12:53 PM Tangle has replied

Replies to this message:
 Message 10 by Tangle, posted 12-22-2015 1:54 PM PaulK has replied

  
Tangle
Member
Posts: 9489
From: UK
Joined: 10-07-2011
Member Rating: 4.9


Message 10 of 34 (774786)
12-22-2015 1:54 PM
Reply to: Message 9 by PaulK
12-22-2015 1:15 PM


PaulK writes:
But Sharia law is implemented only as arbitration with either no legal force or only the legal force of a binding arbitration. On a purely legal level there appears to be no problem.
There would be a legal problem if arbitration is resulting in discrimination - which it routinely will because that is how Sharia is structured.
You say that going to an arbitrator is a sign of disagreement. Unfortunately there is an agreement - to let the arbitrator settle it.
If there was no disagreement, there would be no need for arbitration. You are assuming that both parties agree to arbitration in the Sharia court - that may not be the case. I'm afraid I don't know enough to know whether that is the case but it seems highly likely given that the decision generally favour of the man.
Again, on a purely legal level nobody is compelled to accept arbitration (except under the terms of a contract) and if the arbitration is not binding they are not even legally compelled to accept the result.
Apparently, those that attend these courts are not universally told that and are often told the opposite. Also they are under cultural pressure to accept decisions that a secular court would not uphold. This is an interesting read, written by a Dutch researcher:
Sharia in the UK: The courts in the shadow of British law offering rough justice for Muslim women | The Independent | The Independent
By going to a Sharia court - just like any other arbitrator - the two parties are implicitly agreeing to let the matter be decided by the arbitrators principles - in this case Sharia law.
If either party does not agree then, on a purely legal basis, they are perfectly free to refuse.
This makes the assumption that both parties are equal in the game.
But even if they are, there is a problem with the entire idea that a quasi legal court can decide an agreement that in a 'real' court would be discriminatory on its face. The European Court of Human Rights found that sharia law in incompatible with liberal democracy.

Je suis Charlie. Je suis Ahmed. Je suis Juif. Je suis Parisien.
Life, don't talk to me about life - Marvin the Paranoid Android
"Science adjusts it's views based on what's observed.
Faith is the denial of observation so that Belief can be preserved."
- Tim Minchin, in his beat poem, Storm.

This message is a reply to:
 Message 9 by PaulK, posted 12-22-2015 1:15 PM PaulK has replied

Replies to this message:
 Message 11 by PaulK, posted 12-22-2015 2:07 PM Tangle has replied

  
PaulK
Member
Posts: 17822
Joined: 01-10-2003
Member Rating: 2.2


(1)
Message 11 of 34 (774788)
12-22-2015 2:07 PM
Reply to: Message 10 by Tangle
12-22-2015 1:54 PM


quote:
There would be a legal problem if arbitration is resulting in discrimination - which it routinely will because that is how Sharia is structured.
People can voluntarily accept terms which are less than they would expect from the legal system. Why us that a legal problem?
quote:
If there was no disagreement, there would be no need for arbitration. You are assuming that both parties agree to arbitration in the Sharia court - that may not be the case
It's the case for all arbitration - and that's the only legal status that any Sharia court has in the UK.
quote:
Apparently, those that attend these courts are not universally told that and are often told the opposite. Also they are under cultural pressure to accept decisions that a secular court would not uphold.
And the legal system already offers recourse to such misinformation. And cultural pressure is always present. It's not something you can banish with legislation.
quote:
But even if they are, there is a problem with the entire idea that a quasi legal court can decide an agreement that in a 'real' court would be discriminatory on its face. The European Court of Human Rights found that sharia law in incompatible with liberal democracy.
Again, people are free to accept disadvantageous settlements. The only problem is issues of misinformation and coercion - both of which would offer grounds to go to court and get the Sharia judgement overturned.

This message is a reply to:
 Message 10 by Tangle, posted 12-22-2015 1:54 PM Tangle has replied

Replies to this message:
 Message 18 by Tangle, posted 12-23-2015 4:12 AM PaulK has replied

  
Modulous
Member
Posts: 7801
From: Manchester, UK
Joined: 05-01-2005


(1)
Message 12 of 34 (774793)
12-22-2015 4:08 PM
Reply to: Message 1 by Tangle
12-22-2015 3:27 AM


Sharia Law - Does it have a place in Democratic Countries?
Yes. Just as much as Christian (aka sharīʿat al-Masīḥ) and Jewish law (sharīʿat Mūsā) does. Free citizens are free. They are free to settle family matters and minor disputes over property and business between themselves as they choose, even to their own disadvantage. They retain the rights to utilize the British court system if the two parties cannot reach an agreement.
Edited by Modulous, : No reason given.

This message is a reply to:
 Message 1 by Tangle, posted 12-22-2015 3:27 AM Tangle has replied

Replies to this message:
 Message 19 by Tangle, posted 12-23-2015 4:16 AM Modulous has seen this message but not replied

  
Jon
Inactive Member


Message 13 of 34 (774796)
12-22-2015 4:32 PM


The Slippery Sharia Slope
While it may all sound good in theory, there are real practical concerns on this:
  • Immigrants may not speak English well if at all. They may not understand the actual customs of the Western host countries or their legal rights. Great care must be taken to make sure the permission of Sharia is not used by powerful members of Western Islamic communities to oppress the vulnerable. There is exceptional opportunity for abuse of such privileges.
  • Since a full forty percent of British Muslims favor Sharia a la Saudi Arabia (amputating the hands of thieves, stoning adulterers, etc.) it is completely understandable for folks in the U.K. to be hesitant to open that door.

Love your enemies!

Replies to this message:
 Message 14 by Modulous, posted 12-22-2015 5:39 PM Jon has replied

  
Modulous
Member
Posts: 7801
From: Manchester, UK
Joined: 05-01-2005


(3)
Message 14 of 34 (774798)
12-22-2015 5:39 PM
Reply to: Message 13 by Jon
12-22-2015 4:32 PM


Re: The Slippery Sharia Slope
Immigrants may not speak English well if at all. They may not understand the actual customs of the Western host countries or their legal rights. Great care must be taken to make sure the permission of Sharia is not used by powerful members of Western Islamic communities to oppress the vulnerable. There is exceptional opportunity for abuse of such privileges.
What solutions do you propose? People not dissimilar in view to yourself tend to scream blue bloody murder if taxpayers money is spent on translation services and producing multilingual information guides and the like. So have you a better idea?
Since a full forty percent of British Muslims favor Sharia a la Saudi Arabia (amputating the hands of thieves, stoning adulterers, etc.) it is completely understandable for folks in the U.K. to be hesitant to open that door.
The door has been open for as long as religious freedom has been (actually, its always been open, and Britain has walked through it many times through its thousand years). In fact, the UK was legally physically harming people as punishment into the 60s. Oddly, there seems to be a peculiar intersection of interests with 'Islam is to be insanely feared' type people and the 'hanging's too good for 'em' folk who often want to bring back capital and corporal punishments.
Civil law, arbitration law, traffic violations are all a thousand miles away from criminal law.
Here in the UK, for instance, we'd probably need to rewrite the constitution, abandon several treaties, opt-out of various conventions AS WELL as getting such laws through parliament.
There is no slippery downhill slope - there is a sheer upwards cliff with overhangs and archers picking people off. The Conservative Government's desire to get out of Europe and to abolish the Human Rights act are more significant steps towards getting criminal Sharia Law enacted than the freedom to settle disputes as you wish ever did.
IF corporal punishments for the theft were to be reinstated in the UK it would probably only be because the people that asked for it followed the flawed and corrupt democratic process and won.

This message is a reply to:
 Message 13 by Jon, posted 12-22-2015 4:32 PM Jon has replied

Replies to this message:
 Message 15 by Jon, posted 12-22-2015 7:40 PM Modulous has replied

  
Jon
Inactive Member


Message 15 of 34 (774802)
12-22-2015 7:40 PM
Reply to: Message 14 by Modulous
12-22-2015 5:39 PM


Re: The Slippery Sharia Slope
And your views are not dissimilar to those held by folks who like to lick their own ass.
Drunk painting with a broad brush is pretty easy.
Now how 'bout you addressing what I actually said instead of trying desperately to associate me with people I have nothing to do with?

Love your enemies!

This message is a reply to:
 Message 14 by Modulous, posted 12-22-2015 5:39 PM Modulous has replied

Replies to this message:
 Message 16 by Modulous, posted 12-22-2015 8:46 PM Jon has replied

  
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